M v B

Recognition and enforcement of a foreign parental-responsibility judgment under Council Regulation (EC) no. 2201/2003 is mandatory unless the stringent public-policy exception in Article 23 applies. The test concerns public policy, taking into account the child’s best interests; it is not a freestanding welfare or paramountcy test. The age of the foreign order and delay are not, by themselves, sufficient. The court must assess the overall circumstances, including any exceptional change in the child’s situation. A child’s preference to remain in the requested state will not necessarily engage Article 23 where return is not shown to cause such serious welfare harm as to be manifestly contrary to public policy.

The father appealed against orders made by District Judge Robinson on 17 March 2016 registering and permitting enforcement of a French residence order made on 28 October 2008 in favour of the mother. The order concerned the parties’ two sons, who had been living with the father in England since 2013.

The father argued that circumstances had changed materially because of the passage of time, the children’s ages and their wishes and feelings. The mother relied on the continuing validity of the French order and the Convention’s policy of mutual trust. The central issues were whether the children’s transfer to England was temporary or permanent, and whether recognition or enforcement was manifestly contrary to the public policy of the requested state, taking into account their best interests.

1. Appeal dismissed. The orders registering and permitting enforcement of the French residence order were upheld. Recognition and enforcement were mandatory unless the Article 23 exception applied.
2. The court found that the mother had temporarily entrusted the children to the father while she recovered from illness. The father’s continued retention of them in England was wrongful. The 2008 French order therefore remained extant and effective.
3. The Article 23 test was stringent. It concerned public policy, taking into account the best interests of the child, rather than welfare as such or the paramountcy of welfare. The age of the order was not, by itself, a reason for refusing recognition or enforcement. The question depended on the overall circumstances and was one of fact and degree.
4. The court adopted the approach illustrated by LAB v KB (Abduction: Brussels II Revised) [2010] 2 FLR 1664, ET v TZ (Recognition and Enforcement of Foreign Residence Order) [2014] 2 FLR 373 and Re N (Abduction: Brussels II Revised) [2015] 1 FLR 227: delay must be considered with other powerful and exceptional factors before it can justify non-recognition or non-enforcement.
5. The younger child wished to return to France. Although the elder child preferred to remain in England with the father, his wishes were conflicted and his relationship with the mother had improved. Returning both children together to France was not shown to compromise his welfare so seriously as to engage Article 23. The children’s ages when the French order was made also meant that the hearing ground did not realistically apply.
6. Once the relevant interim restriction was discharged, the mother was entitled to take the children to France pursuant to the French residence order.

• High Court (Family Division): The father’s appeal against District Judge Robinson’s orders of 17 March 2016 was dismissed. Recognition and enforcement of the French residence order were maintained.